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The Principle of Open Justice and the Judicial Duty to Give Public Reasons

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The Principle of Open Justice and the Judicial Duty to Give Public Reasons THE PRINCIPLE OF OPEN JUSTICE AND THE JUDICIAL DUTY TO GIVE PUBLIC REASONS JASON BOSLAND* AND JONATHAN GILL† This article explores the common law duty of courts to provide publicly available reasons for their decisions. The pre-modern position was that a failure to provide reasons did not constitute an error of law. However, the position in Australia has evolved such that the duty to provide reasons is now considered an ‘incident of the judicial process’ and has been recognised more recently as flowing from the principle of open justice. Against the backdrop of the emerging case law in Australia linking the duty to provide reasons with the open justice principle, this article considers when and how such a duty is to be exercised, what it might require in terms of public access to, and publication of, reasons, and the circumstances in which the publication of reasons can be withheld or subject to suppression by the courts. CONTENTS I Introduction .............................................................................................................. 483 II The Evolution of the Legal Duty to Give Reasons ............................................... 487 A Legal Duty to Give Reasons ....................................................................... 490 1 Duty as an Incident of the Right to Appeal ................................ 493 2 Broader Duty to Give Reasons ..................................................... 495 3 Open Justice and the Duty to Give Reasons ............................... 498 B Exceptions to the Duty to Give Reasons .................................................. 502 III Open Justice and the Publicity of Reasons ........................................................... 506 A Open Justice and the Public’s Right to Access Reasons ......................... 507 B Extent of the Duty to ‘Publish’ Reasons ................................................... 511 * BA, LLB (Hons), LLM (Melb), LLM (Dist) (LSE); Senior Lecturer, Melbourne Law School, The University of Melbourne; Deputy Director, Centre for Media and Communications Law, The University of Melbourne. † BTheol (Hons) (MCD), BA (Hons), LLB (Hons), LLM (Melb); Director, Carrick Gill Smyth Pty Ltd; Senior Fellow, Melbourne Law School, The University of Melbourne. The authors wish to thank David Brennan, Luke Cesare, Skye Chapman, Chris Dent, Louise Ellis, Robin Gardner, Kirsty Gover, Matthew Harding, Andrew Kenyon, Jürgen Kurtz, Janice Luck, James Nunez, Megan Richardson, Andrew Robertson, Sharon Rodrick, David Rolph, Adrian Storrier and Sophie Walker. 482 2014] The Judicial Duty to Give Public Reasons 483 IV Derogating from the Duty to Publish Reasons .................................................... 513 V Concluding Comments ........................................................................................... 522 I INTRODUCTION The principle of open justice — ‘that justice should not only be done, but should manifestly and undoubtedly be seen to be done’1 — is a central feature of the administration of justice under the common law.2 The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure,3 it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow.4 Such rules include: first, that judicial proceedings are conducted,5 and decisions pronounced,6 in ‘open court’; second, that evidence is communicated publicly to those present in the court;7 and, third, that 1 R v Sussex Justices; Ex parte McCarthy [1924] KB 256, 259 (Lord Hewart CJ). 2 Chief Justice J J Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292. Indeed, it is of such importance that it is given constitution- al status in Australia as the ‘authentic hall-mark’ that distinguishes the exercise of judicial power from that of executive or administrative power: McPherson v McPherson [1936] AC 177, 200 (Lord Blanesburgh for Lords Blanesburgh, Macmillan and Wright); Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J). The constitutional significance of the principle was first recognised by Lord Shaw inScott v Scott [1913] AC 417, 473–5. See also more recent Australian constitutional cases, where adherence to the open justice principle has been de- scribed as a ‘defining’ or ‘essential’ characteristic of courts for the purposes of ch III of the Constitution: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638, 659 [67] (French CJ); Wainohu v New South Wales (2011) 243 CLR 181, 208 [44] (French CJ and Kiefel J) (‘Wainohu’); Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ). It is also seen as a defining feature of the right to a fair trial: see, eg, Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953) art 6, as amended by Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010) (‘European Convention on Human Rights’). 3 Chief Justice Spigelman, ‘Seen to Be Done’ (Pt I), above n 2, 292; Chief Justice J J Spigelman, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29(2)University of New South Wales Law Journal 147, 153. 4 Chief Justice Spigelman, ‘Seen to Be Done’ (Pt I), above n 2; Chief Justice Spigelman, ‘The Principle of Open Justice: A Comparative Perspective’, above n 3. 5 Scott v Scott [1913] AC 417, 434–5 (Viscount Haldane LC); Dickason v Dickason (1913) 17 CLR 50, 51 (Barton ACJ); John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–7 (McHugh JA). 6 See, eg, Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122 (Balmford J); Ho v Loneragan [2013] WASCA 20 (5 February 2013). 7 A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450 (Lord Diplock). 484 Melbourne University Law Review [Vol 38:482 nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.8 However, the rules to which the open justice principle gives rise are not absolute.9 In circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings10 or to avoid some other relevant harm — such as, for example, undue distress or embarrassment to a victim of a sexual offence11 — courts can derogate from the open justice rules by ordering that proceedings be heard in closed court (‘in camera’ orders), that certain evidence be concealed from the public (‘concealment’ orders), or that the publicity given to particu- lar proceedings be restricted (‘suppression’ or ‘non-publication’ orders). Despite the exceptional nature of any such measure,12 substantial criticism in recent years has focused on the frequency with which some Australian courts make suppression orders — especially in Victoria, South Australia and, more recently, in New South Wales.13 Indeed, in Victoria, problems identified with the number, breadth and clarity of orders has led to the recent introduction of the Open Courts Act 2013 (Vic) to tighten up the circumstances in which suppression orders can be made. Similar legislation has also been passed in New South Wales14 and at the federal level.15 However, what has been largely overlooked in these discussions and law reform efforts is that some Australian courts frequently engage in a particularly extreme, and, in some instances, far more hidden method of derogating from the open justice principle by suppressing or withholding the publication of the reasons for their decisions.16 8 Ibid; Hogan v Hinch (2011) 243 CLR 506, 532 [22] (French CJ); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 335 [15] (Gleeson CJ and Gummow J); John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–9 (McHugh JA). 9 Hogan v Hinch (2011) 243 CLR 506, 530 [20] (French CJ). 10 Scott v Scott [1913] AC 417, 436–7 (Viscount Haldane LC). 11 See, eg, Open Courts Act 2013 (Vic) s 18(1)(d). 12 Courts have described the making of a suppression order as ‘wholly exceptional’: see, eg, Herald & Weekly Times Pty Ltd v Magistrates Court of Victoria (2004) 21 VAR 117, 120 [15] (Whelan J), quoting R v Pomeroy [2002] VSC 178 (20 May 2002) [11] (Teague J). 13 See, eg, Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008–12’ (2013) 35 Sydney Law Review 671. 14 Court Suppression and Non-Publication Orders Act 2010 (NSW). 15 Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). 16 Courts do not always make orders directed specifically at the suppression of reasons themselves. Instead, courts will often refrain from publishing reasons in order to comply with other suppression orders that are on foot — for example, where there are orders restraining the publication of a defendant’s name: see, eg, News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, discussed in Part IV below. Furthermore, in some instances courts will withhold the publication of reasons in the absence of any order at all: see, eg, Matthews v The Queen 2014] The Judicial Duty to Give Public Reasons 485 Such is the current practice adopted by superior courts in Victoria, New South Wales and Western Australia.17 At the time of writing, a search of the Australasian Legal Information In- stitute database (‘AustLII’) (a free online legal database of Australian judg- ments)18 revealed that in Western Australia, 47 judgments of the Supreme Court and 17 of the Court of Appeal were suppressed, with one such decision going back as far as 1999.19 Alarmingly, 24 of the suppressed judgments were handed down in 2013 alone. The AustLII entry for each suppressed judgment contains only the standard case name ‘Judgment Suppressed’, the court’s medium neutral citation and the date of the decision. There is no indication as to the nature of the proceeding, the reasons for suppression, or the identity of the presiding judge. Likewise, judicial reasons are often subject to suppression in New South Wales.
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